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GAO was asked to assess the effectiveness of nursing home oversight by considering the effect of a unique Arkansas law that requires county coroners to investigate all nursing home deaths. Coroners refer cases of suspected neglect to the state survey agency and law enforcement entities such as the state Medicaid Fraud Control Unit (MFCU). The Centers for Medicare & Medicaid Services (CMS) contracts with survey agencies in every state to periodically inspect nursing homes and investigate allegations of poor care or neglect. MFCUs are charged with investigating and prosecuting resident neglect. GAO examined (1) the results of Arkansas coroner investigations, (2) the state survey agency's experience in investigating coroner referrals, and (3) whether weaknesses in state and federal nursing home oversight identified in prior GAO reports were evident in the survey agency's investigation of coroner referrals.

According to the Pulaski County coroner, he referred 86 cases of suspected resident neglect to the state survey agency for the period July 1999, when the Arkansas law took effect, through December 2003. Agency officials said that other state coroners referred four cases during this time period. Importantly, these 86 referrals constituted just 2.2 percent of all nursing home deaths the coroner investigated. However, the referrals included disturbing photos and descriptions of the decedents, suggesting serious, avoidable care problems; more than two-thirds of the 86 referrals listed pressure sores as the primary indicator of neglect. Some photos of decedents' pressure sores depicted skin conditions so deteriorated that bone or ligament was visible, as were signs of infection and dead tissue. The referrals involved 27 homes, over half of which had at least 3 referrals. Arkansas state survey agency officials told GAO that they received 36 (fewer than half) of the Pulaski County coroner's referrals. The 50 referrals not received described decedents' conditions similar to those the survey agency did receive. Of the 36 referrals for alleged neglect that it received, the survey agency complaint investigations substantiated 22 and eventually it closed the home with the largest number of referrals. However, the agency's investigations often understated serious care problems--both when neglect was substantiated and when it was not. For 11 of the 22 substantiated referrals, the state survey agency either cited no deficiency for the decedent or cited a deficiency at a level lower than actual harm for the predominant care problem identified by the coroner. In contrast, MFCU investigations of many of the 11 referrals found the homes negligent in caring for decedents, and the MFCU reached settlements with the owners of several homes. In half of the 14 referrals not substantiated, the MFCU or an independent expert in long-term care either found neglect or questioned the "not substantiated" finding. Moreover, they found gaps and contradictions in the medical records for some decedents, raising a question about the survey agency's conclusions that the same records indicated appropriate care had been provided. GAO's prior work on nursing home quality of care found that weaknesses in federal and state oversight nationwide contributed to serious, undetected care problems indicative of resident neglect. GAO's review of the Arkansas survey agency's investigations of coroner referrals confirmed that serious, systemic weaknesses remain. Oversight weaknesses GAO previously identified nationwide and those it found in Arkansas included (1) complaint investigations that understated the seriousness of allegations and were not timely; (2) predictable timing of annual state surveys that could enable nursing homes so inclined to cover up deficiencies; (3) survey methodology weaknesses, coupled with surveyor reliance on misleading medical records, that resulted in missed care problems; and (4) a policy that did not always hold homes accountable for neglect associated with a resident's death.

Recommendations for Executive Action

Status: Closed - Implemented

Comments: On June 13, 2005, CMS sent out draft guidance on past noncompliance to state survey agencies, regional offices, provider associations, and others for comment. The proposed guidance clarifies the current guidance, but only holds nursing homes accountable for past acts involving immediate jeopardy to residents, not actual harm, as GAO recommended. Update: In October 2005, CMS issued a revised past noncompliance policy that holds homes accountable for all past noncompliance resulting in harm to residents, clarifies how to address recently identified past deficiencies, eliminates the use of the term "egregious," and clarifies the methods for determining whether past noncompliance has been corrected.

Recommendation: The Administrator of CMS should revise the agency's current policy on citing deficiencies for past noncompliance with federal quality standards by holding homes accountable for all past noncompliance resulting in harm to residents, not just care problems deemed to be egregious.

Comments: CMS has sent out draft guidance for comment on its revised non-compliance policy. The draft guidance indicates that, starting on November 1, 2005, CMS will discontinue the use of data tag F698, which signifies past noncompliance. CMS indicated it is proceeding to modify the data system so that the specific nursing home survey data tag for which there was past noncompliance is appropriately identified. However, the specific problems for which past noncompliance was cited will not be posted on CMS's Nursing Home Compare web site until sometime in 2006 due to a backlog of higher priority programming requirements. Update (2006): In December 2005, we reported that CMS plans to enhance the information on its Nursing Home Compare Web site to include the specific nature of the past noncompliance in 2007. In August 2007, I followed up with Ed Mortimore of CMS and learned that the information has been reported on the Nursing Home Compare Web site since the fall of 2006.

Recommendation: The Administrator of CMS should revise the agency's current policy on citing deficiencies for past noncompliance with federal quality standards by developing an approach for citing such past noncompliance in a manner that clearly identifies the specific nature of the care problem both in the OSCAR database and on CMS's Nursing Home Compare Web site.